The Proposed “Stand Your Ground” Law Pending Before the Massachusetts Senate

Posted on May 17, 2012 by admin

Unless you have been living under a rock or on a deserted island for the past several months, you have probably heard about Trayvon Martin and Florida’s “Stand Your Ground” law.  What you may not know, however, is that there is a proposed law, Senate Bill 661, pending before the Massachusetts Legislature that would enact a “Stand Your Ground” rule here in Massachusetts.  Massachusetts residents already have the right to use deadly force against home intruders. However, this proposed statute would expand the right to use deadly force to defend one’s self beyond an individual’s home to any public place a person “has any right to be.”

Under current Massachusetts law (Mass. Gen. Laws ch. 278, section 8A), an occupant of a home may use deadly force against an intruder if the occupant has “acted with the reasonable belief” that the intruder was about to “inflict great bodily injury or death.”  There is no duty for the occupant of the home to retreat before using deadly force.  Deadly force can also be used to defend another person who is lawfully inside the home.  The language of the proposed law is very similar to that of Massachusetts’ current self-defense statute.  However, it also provides that deadly force, exercised in self defense, may be used in any place where a person has any right to be.

To be fair, the proposed Massachusetts Stand Your Ground law has been pending before the Joint Committee on the Judiciary for the past five years and has not yet been passed. Thousands of bills are filed during a two-year legislative session, and most are not passed into law. Proponents of the bill argue that it would not be applicable to situations like Trayvon Martin’s, because it would not permit the use of lethal force after chasing someone down.  Nevertheless, many community leaders and even Governor Deval Patrick have come out against the bill.  Consequently, even if Trayvon Martin’s death and the ensuing media frenzy had never occurred, this bill would probably still be toiling in relative anonymity in the doldrums of the Massachusetts legislature.

If you would like to speak with an experienced Massachusetts Criminal Attorney, call our office today at (978) 263-7119, or contact us online.

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Why Mass. Should Not Eliminate the Limitations Period on Child Sex Abuse Charges

Posted on April 3, 2012 by admin

Recently, the Massachusetts legislature considered bill H 469, which would completely eliminate the criminal and civil statute of limitations for child sex abuse and increase the penalties for failing to report such abuse.  This bill certainly is well intended, as protecting children’s safety and well being is at the top of everyone’s list of priorities .  However, in considering the merits of bill H 469 it is important to take into account the important purpose the statute of limitations serves, and the interests it protects.

Currently in Massachusetts, the statute of limitations for bringing criminal charges for child sex abuse is 27 years from the time the incident was first reported, or from when the victim turns 16, whichever comes earlier.  However, the 27 year limitations period doesn’t bar all potential claims brought after the 27 year period.  The 27 year statute of limitations is waived for if there is independent evidence which corroborates the victim’s allegations.  So, in a sense, the statute of limitations for child abuse claims has already been eliminated in Massachusetts, provided the victim has some independent evidence of the abuse.  Massachusetts’ 27 year limitations period is relatively long when compare to states such as Arkansas, where the SOL for criminal cases is only 6 years, or California where it is 12 years.  All in all, Massachusetts has put in place a statute of limitations which both protects the interests of those victimized by such atrocious acts and maintains the integrity and fundamental purpose served by the statute of limitations.

The purpose of the statute of limitations is to prevent innocent persons from being persecuted for false claims.  Over time, the evidence supporting a case can be lost, destroyed or tainted. A statute of limitations requires a party to bring a lawsuit while witness’ memories and other available evidence is still relatively fresh.  Were it not for these statutes, people would be subject to all types of frivolous lawsuits dealing with evidence, including witness’ memories, which can be easily weakened over time.  Thus having a statute of limitations for child sex abuse charges is especially important, because even unfounded allegations of sex abuse can permanently destroy someone’s personal and professional life.

Visit this website to find the contact information for your legislator if you would like to express your opposition to bill H 469.  If you would like to speak with a Massachusetts Criminal Lawyer, call our office today at (978) 263-7119, or contact us online.

 

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Government Seeks Forfeiture of Tewksbury Motel Based on Guests’ Drug Related Activities

Posted on March 21, 2012 by admin

Many readers may have already heard about the Motel Caswell in Tewksbury.  After all, the story appeared nationally on the Wall Street Journal and on Fox news.  Those who haven’t will probably be shocked to learn just how far the federal drug forfeiture laws may extend.

The Motel Caswell has been owned and operated for decades by Russell Caswell and his wife, who are now an elderly couple.  In 2009, the Tewksbury Police teamed up with the federal government to file a complaint in federal court seeking forfeiture of the motel on the grounds that it has been used for illegal drug activity.  Mr. and Mrs. Caswell have not been personally charged with any wrongdoing, however the government’s complaint relies upon criminal activity by the motel’s guests as the basis for seeking forfeiture.  If the government is successful in its efforts, the Caswells will lose their business and their entire livelihood.

The motel's owner, Russell Caswell

To be fair, the Caswell is a prototypical seedy motel with rather questionable clientelle.  At $57 per night for a room, it is does not normally attract the high class and well-to-do.  In fact, the Caswell was featured in Ricky Gervais’ movie “The Invention of Lying”, in which it was renamed “A Cheap Motel for Intercourse”.

Nevertheless, the government’s attempt to cast the motel as a breeding ground for criminal activity seems very farfetched.  According to the Justice Department’s court filing, the Caswell has been connected with seven police investigations from 2001 to 2008 that resulted in at least eight convictions for drug-related crimes.  However, the Caswell has let tens of thousands of rooms during this time period.  Therefore, far less than .1% of the Caswell’s guests have been involved in criminal activity.

It is clear that this case has nothing to do with crime prevention, and everything to do with money.  The motel is worth approximately $1 million and it has no mortgage, which means that the authorities would receive all of the auction proceeds free and clear.  Furthermore, the Tewksbury Police Department, which is providing the U.S. authorities with evidence for the case, could receive up to 80% of the proceeds from the sale of the Caswell.

The Caswells are the victims of the government’s increasing reliance upon the forfeiture laws as a revenue source.  In 1986, when the U.S. Department of Justice’s forfeiture fund was created, it took in approximately $94 million.  In 2010, however, the fund took in over $500 million.   The justification for the forfeiture laws is that they are necessary to drain wealth from drug cartels.  However, the Caswells are obviously not drug lords and are not involved in any way with the drug trade.

A hearing on the Caswell’s summary judgment motion seeking to dismiss the complaint was held on February 13th, 2011.  To support their motion, the Caswells’ lawyer argued that the forfeiture law violates Tenth Amendment, which prohibits the federal government from encroaching upon the sovereignty of state governments.  The federal forfeiture statute is much more lenient than its Massachusetts counterpart, therefore the Caswells’ lawyer argued that the federal statute provides a means and incentive for local law enforcement officials to circumvent the state forfeiture laws.  Judge Judith Dein of the U.S. Federal District Court for the District of Massachusetts has taken the Caswell’s motion under advisement, and we will post an update as soon as she issues her ruling.

If you would like to speak with a Massachusetts Criminal Lawyer, call our office today at (978) 263-7119, or contact us online.

 

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Star Trek Fan Posts Youtube Video Demonstrating Officer Conducted Illegal Search

Posted on March 18, 2012 by admin

On December 4th, 2011, Terrance Huff and John Seaton were driving from St. Louis to Ohio after visiting a Star Trek exhibit in St. Louis.  The two were stopped in Illinois by officer Michael Richert who proceeded to search their car for drugs.  Officer Reichert’s search turned up nothing, and the two men were sent on their way.

Terrance Huff

Instead of suffering the injustice of having his Constitutional rights violated in silence, Mr. Huff posted a Youtube Video with squad car footage of the traffic stop.  In the video, which can be seen here, Mr. Huff breaks down the traffic stop step by step, demonstrating that Officer Reichert manufactured probable cause to search his car.  The Officer repeatedly asked Mr. Huff for consent to search his car, and Mr. Huff repeatedly refused.  The officer then had a dog circle the car to sniff for drugs.  The video goes into detail describing how Officer Reichert got the dog to falsely ‘indicate’ in order to manufacture probable cause.  The video concludes by noting that Officer Reichert has a criminal history, including a federal conviction for “selling knocked off Oakley sunglasses.”

I have to give Mr. Huff credit for putting together this video and posting it.  It is very well made as far as homemade videos go, and it is apparent that Mr. Huff did his homework and put a lot care into it.

The advent of modern technology such as cell phones and the internet has already had a significant impact on crime enforcement and the prevention of police misconduct.  For instance, read our blog post from September discussing the case of Simon Glik, in which the First Circuit Court of Appeals held that officers violated the First Amendment rights of a man who was arrested for filming an arrest.  In the future, it will be interesting to see how the internet and modern technology continue to influence law enforcement and Constitutional law.

If you would like to speak with a Massachusetts Criminal lawyer, call our office today at (978) 263-7119, or contact us online.

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Court Rules Police Undermined Their Credibility by Lying to Gain Consent to a Warrantless Search

Posted on March 9, 2012 by admin

When it comes to the law and those who enforce it, we would like to think that law enforcement professionals do so in an honest and ethical manner.  However shocking as it may sound, however, the police have a right to lie to a citizen in an attempt to make searches and arrests in situations where a warrant may otherwise be necessary.  A recent case in Florida highlights the negative aspects such police tactics might have on their professional reputation.

A common police enforcement strategy which has come under some scrutiny is the “Knock and Talk.”  This occurs when an officer lies about an emergency or some other circumstance to gain entry into someone’s home without a warrant or probable cause.   The courts have generally held that the “Knock and Talk” is a legal method that does not violate the Fourth Amendment protection against unlawful search and seizure.  In one recent case, however, a Florida judge held that the officer’s credibility had been so damaged by lying to gain entry in the defendant’s home that his testimony regarding other aspects of the case could not be seen as truthful.

The case is Florida v. David Alan Beauprez, and it was handed down during January of 2012 by Judge Joseph Will of the Seventh Circuit Court of Florida.  In this case, two officer’s gained entry into the Defenandant’s home by lying to his elderly mother about a 911 emergency.  After entering, the officers found drugs inside the home after opening the drawer of a piece of furniture.  The officers testified that the Defendant’s elderly mother consented to the officers searching the drawer, however the Defendant’s mother denied that she ever provided consent.  The court found that the mother was the more credible witness, and ordered that the evidence must be suppressed.

The court noted that “dishonesty is seldom without consequences for any of us.  When the government lies to its citizens, though, the consequences are dire . . . There is a significant sacrifice by the state when it relies upon dishonest police conduct as the base of its prosecution.  Once the character or reputation of any witness has been damaged, it is difficult to reconstruct, in whole or in part.”

For the criminal defense bar, Judge Will’s decision comes as a breath of fresh air.  It is important that the police have the available means necessary to fight against and deter criminal activity.  However, the police should be held to the same standard of accountability as any other witness when they lie and employ deceitful tactics.  This is exactly what happened in the Beauprez decision, as Judge Will determined that the police officers’ use of deceptive tactics completely undermined their credibility, which ultimately caused the prosecution to fail.

If you would like to speak with a Massachusetts Criminal Defense Lawyer, call our office today at (978) 263-7119, or contact us online.

 

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Error in Sobriety Checkpoint Press Release Does Not Warrant Suppression of Evidence

Posted on February 26, 2012 by admin

Sobriety checkpoints are one tactic that law enforcement officers use to ensnare those who operate a vehicle under the influence. Sobriety checkpoints must strictly adhere to a predetermined plan, developed by supervisory personnel, in order to be constitutionally sound. The reason for the predetermined plan is to eliminate police arbitrariness in conducting the checkpoint.  The Massachusetts Supreme Judicial Court has recommended for the police to publicize these roadblocks so as to reduce the inconvenience to motorists, however a recent case illustrates that such notifications are not constitutionally necessary. Therefore, an error in the press release announcing a sobriety checkpoint location does not mandate suppression evidence gathered pursuant to a stop at a check point.

In Commonwealth v. Aivano, (Docket No. 11-P-688) (Feb. 3, 2012) the Massachusetts Appeals Court held that an error in the police press release does not require suppression of evidence obtained during a stop at a sobriety checkpoint.  The police press release in Aivano stated that the checkpoint would be held on a “Secondary State Highway,” however it was actually conducted on a municipal public way. The Appeals Court reversed the lower court’s decision to suppress the evidence gathered at the checkpoint because the checkpoint did not deviate from law enforcement’s predetermined plan. The Appeals Court found that the mistake in the press release was not intended to mislead the public, and therefore it was not unconstitutional. The court noted that the Supreme Judicial Court has declared that the location of a roadblock does not have to be announced in advance, and a press release is not constitutionally required.

If you were involved in a stop at a sobriety checkpoint which led to an OUI arrest, call an experienced Massachusetts OUI attorney to learn what your rights are.  Our lawyers are available twenty four hours a day, seven days a week to answer your questions.  Call our office now at (978) 263-7119, or contact us online.

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Federal District Court Case Illustrates High Standard for Suppression of Witness ID Evidence

Posted on February 21, 2012 by admin

A common tactic defense attorneys use to attack the prosecution’s case against their client is to attempt to suppress a piece of evidence.  In a recent case heard by the Federal District Court of Massachusetts, US v. James (Criminal No. 10-30017-NMG), the defense attorney attempted to suppress all evidence and testimony concerning identification of the perpetrator by the witnesses. In James, a confidential informant working with the FBI allegedly sold drugs to the defendant, Melvin James, during February of 2010. However, James was not arrested until about two months later. The confidential informant picked James out of a photo array comprised of seven photographs, each depicting a hispanic man of roughly the same age as James. However, only two of the seven photos were “close-ups”, one being of the defendant and the other of a man with a prominent scar on his cheek. Defendant’s counsel filed a motion to suppress, arguing that the identification process was unduly suggestive in violation of the defendant’s right to due process under the Fifth and Fourteenth Amendments.

The First Circuit court uses a two prong test to assess the admissibility of a photo identification. The first prong is whether the identification procedure was “impermissibly suggestive.” If the identification procedure was impermissibly suggestive, then the court asks whether the identification was still reliable based on the totality of the circumstances.  When determining reliability the court looks at 1) opportunity of witness to see the criminal, 2) witness’ degree of attention, 3) accuracy of witness’ prior description 4) level of certainty by witness at confrontation and 5) length of time between time and confrontation. The defendant does not have an automatic right to an evidentiary hearing on a motion to suppress, so he must show that the facts are in dispute.

The court concluded that the photo identification process the was proper, and denied James’ motion to suppress. The court found no reason to believe that the “close-up” photograph of James was suggestive of his guilt. James demonstrates that the standard for excluding witness identification evidence is extremely high, and it can only be suppressed under rather extraordinary circumstances.

To speak with a criminal lawyer, call our office today at (978) 263-7119, or contact us online.

 

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ATVs and Other Off-Road Vehicles Can Be Considered Motor Vehicles under Massachusetts OUI Laws

Posted on January 10, 2012 by admin

To be charged with operating under the influence in Massachusetts, the impaired driver must be operating a “motor vehicle.” The issue that arises in some cases is what is deemed to be a “motor vehicle.” G.L.c. 90, §1 defines motor vehicles as “all vehicles constructed and designed for propulsion by power other than muscular power” though the statute does provide an exemption for vehicles that are unable to surpass twelve miles per hour and are intended for use “elsewhere than on the traveled parts of ways.” G.L.c. 90B, §20 regulates these types of vehicles, such as all-terrain (ATVs), off-highway, snow, and recreational vehicles. In 2010 the Massachusetts Legislature stiffened the penalties for operating these vehicles under the influence, bringing the punishment closer to motor vehicle OUI (a first offense is a fine of between $500-$5000 with a license suspension of a year. Each subsequent conviction results in a longer license suspension. However, there is no possibility of imprisonment under these charges).

Despite the foregoing, ATV’s and other similar means of transportation can still be deemed “motor vehicles” for purposes of the OUI laws under certain circumstances. The Massachusetts Appeals Court recently found that an ATV operator can be charged with a motor vehicle OUI if the operator does not conform to the requirements of the recreational vehicle statute. In Commonwealth v. Soldega, (Docket No. 10-P-1925) (Nov. 23, 2011), the appeals court reaffirmed the defendant’s conviction for motor vehicle OUI because he drove his ATV on a public highway at speeds of up to sixty miles per hour. By operating his vehicle more like a motor vehicle and less like a recreational vehicle, Soldega lost the benefit of the less stringent regulations.

One last note:  Massachusetts does not have a separate “biking under the influence” or “cycling under the influence” statutes like some states do. That is not to say that you cannot be charged with a crime for riding a bike under the influence. It merely means that there is no statute which specifically proscribes penalties for cycling while intoxicated. However, California’s drunk cycling statute subjects offenders to a base fine of $250.00.

If you would like to speak with a knowledgeable Massachusetts OUI attorney, call our office today at (978) 263-7119, or contact us online.

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What Constitutes Consent for Police to Conduct a Search? The US First Circuit Court of Appeals’ Recent Decision in US v. Brake

Posted on January 7, 2012 by admin

A recent US First Circuit Court of Appeals opinion expounds upon one of the nuances of the search and seizure laws.  The case also illustrates the importance of consulting with a knowledgeable criminal lawyer whenever you face potential criminal liability and you are unsurewhat your rights are.

The incident giving rise to the case occurred in Somersworth, New Hampshire, during January of 2010.  The police received a call about a man with a handgun creating a disturbance at a home.  When police arrived at the neighborhood where the call originated, they noticed the defendant, Adam Brake, walking down the street with another man.  The police stopped the two men and patted them down to check for weapons, whereupon they noticed a large “squishy” lump in Mr. Brake’s pants pocket.  The police asked Mr. Brake what he had in his pocket, and he told them that it was a trash bag he found in the bushes.  Mr. Brake acceded to the officers’ request to take out the trash bag, and upon opening the bag the officers discovered that it contained hundreds of OxyContin pills.

The defendant, Adam Brake, was charged with possession with intent to distribute a controlled substance (Oxycodone)

At trial Mr. Brake argued that the stop and pat-down were improper, however the court disagreed.  The court noted that the officers were responding to a potentially dangerous situation, and they had reasonable cause to be suspicious of Brake given his proximity in time and distance to the scene.  The court also noted that Brake and the other man with him were wearing baggy clothing which could have concealed a handgun.

Mr. Brake also argued that he did not consent to having the officers search the contents of his pocket, however the court disagreed with this argument as well.  Mr. Brake argued that he was merely submitting to a claim of lawful authority, rather than voluntarily consenting to have the officers search the bag in his pocket.  However, the court decided that Mr. Brake voluntarily consented to the search because the officers did not in any way represent that he was required to show them the bag’s contents.

As the court noted, Mr. Brake was not required to pull the bag out of his pocket, and he was free to walk away from the police at any time after they completed the pat-down.  Mr. Brake was also free to stop answering the officers’ questions and call an attorney for advice. Therefore, if you are ever in a situation which could lead to serious criminal liability and you are not sure what your rights are, call a criminal lawyer right away.  Our attorneys are available around the clock any time that you need them to help protect your rights and preserve your freedom.

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Pleading to Sufficient Facts to Warrant a Finding of Guilt Has Its Advantages and Disadvantages

Posted on January 2, 2012 by admin

A recent case decided by the Suffolk Superior Court has illustrated some of the nuances of having an operating under the influence case continued without a finding (CWOF).

A CWOF is an admission of sufficient facts to warrant a finding of guilty but is not technically a guilty plea. The benefit of entering a CWOF is that the court will continue the case for a determined amount of time while placing the defendant on probation. If the defendant satisfies the terms of probation the case is dismissed without a guilty verdict entering.  If a prospective employer or anyone else asks you if you have been convicted of a crime you can truthfully answer “no”. However, the charge will remain on your criminal record.

Suffolk Superior Court in Boston

Santos v. Board of Appeal on Motor Vehicle Liability Policies and Bonds of the Division of Insurance, which was decided by the Suffolk Superior Court on December 8th, 2011, illustrates one of the disadvantages of entering a CWOF.  The defendant in that case, Michael Santos, entered a CWOF for a drunk driving charge brought against him in 2002.  In 2010, Santos was arrested for drunk driving again and he refused to take a breathalizer.  Santos’ license was suspended for three years, which is the applicable penalty for refusing a breathalizer on a second offense OUI.  (See our blog post discussing The Consequences of Refusing or Failing a Breathalizer Test in Massachusetts)

Santos contested the three year license suspension, arguing that applicable statutes do not provide that a CWOF qualifies as a first offense for drunk driving.  However, the court decided against Mr. Santos after determining that previous case law has interpreted a CWOF to be the equivalent of a guilty plea.

Mr. Santos’ case illustrates one of the drawbacks to entering a CWOF in order to settle an OUI charge.  If you are facing drunk driving charges, speak with a Massachusetts OUI attorney to determine your best course of action.  Call our office today at (978) 263-7119, or contact us online.

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